This article is written by Aditya Sharma who is pursuing a Certificate Course in Advanced Criminal Litigation and Trial Advocacy from LawSikho.
“The coronavirus requires a challenging balance of rights: the rights of the defendant to a speedy trial and a trial by a jury of their peers against the rights of courtroom actors and jury members to their health”
– Theodore Wilson, University of Albany’s School of Criminal Justice.
The Coronavirus pandemic (COVID-19) has taken over the world by a storm. Due to such an unprecedented event, the whole dynamics of the world are on the verge of a dramatic change and are already changing at a very fast pace. All professions are struck badly but here the author is going to deal exclusively with the legal profession and how it’s been affected.
COVID-19 has affected Indian Judiciary to a very great extent. Since the lockdown was implemented in the month of March this year, the functioning of the Indian courts have not gone back to normal since then. If this lockdown was not implemented in the month of March, then the spread of COVID-19 among the legal professionals like Judges, Lawyers, their staffs and clerks would have spread like wildfire and it was inevitable. But there is always a flip side to each coin. Even though the Courts are functioning at a fraction of their prime capacity, most of the Indian Courts have taken some steps to ensure that the Justice delivery system is not hauled even in this pandemic.
On March 24, 2020, in a live address to the nation, Prime Minister Narendra Modi announced a 21-day lockdown across the country to curtail the spread of COVID-19. Powers granted to the Central government by the National Disaster Management Authority (NDMA) under the Disaster Management Act, 2005 were invoked to enforce the lockdown. District magistrates across the country had already imposed curfews exercising powers under Section 144 of the Code of Criminal Procedure (CrPC).
The nation-wide Lockdown was in effect from March, the Supreme Court of India ordered on March 26th to take up only urgent matters and the same order was passed to other subordinate courts as well. Therefore, it was a clear message by the Apex Court that the judiciary is not under lockdown and will continue to perform its Constitutional duties. And now when the lockdown is lifted the Courts are slowly picking up their paces and have started to take up other matters as well, like fresh filed cases and other additional matters.
The Criminal Justice system before the pandemic
The Criminal Justice System incorporates all the agencies involved for delivering justice against the criminal atrocities inducted upon the citizens and also to stop future happening of a crime. Agencies like police and the Courts in particular are responsible for such work. The main aim of the Criminal Justice System is to protect the lives and personal liberty of citizens and society at large, against external aggression. The Criminal Law in India is contained in different sources like Indian Penal Code(IPC), 1860, Criminal Procedure Code (CrPC), 1973, Dowry Prohibition Act, 1961, the Protection of Civil Rights Act, 1955, etc.
There are more than 85% backlog cases in the Indian Subordinate courts like district courts. Seeing such a huge percentage of logged cases, the Courts are clearly having a goal to clear such logjam and also to create such mechanisms that no new pendency is created. As per the latest report, in India only 16 out of 100 people who are booked for criminal offences are booked legally by the Courts. This low rate of conviction is due the incapacity and ill-mechanism of various parts of Democracy, particularly the Judiciary.
In the year 2000, the Government of India formed a panel under the supervision of Justice V.S. Maliamath, the former Chief Justice of Kerala and Karnataka, gave some genuine suggestions to reform and re-introduce the century-old criminal justice system of India. The Maliamath Committee submitted its report in 2003, giving 158 recommendations but these recommendations were never really implemented in reality. The main observation of this Committee was that the present Criminal Justice System weighed much more in favour of the accused rather than giving justice to the victim.
As per the guidelines of National Mission for Safety of Women, the government has set up 1,023 Fast Track Special Courts (FTSC), which exclusively deal with time-bound disposal of criminal cases against women and sexual offences against children.
How has the system been affected by the Covid-19?
The genetically mutated coronavirus has blown up the living style which was followed since a very long time and normal human contact has been largely replaced with intra-family communication and technological mediums such as zoom, skype, etc. Judiciary too have been hit a blow and it has resorted to use such technological mediums to conduct online pleadings of cases through video conferencing. Taking into consideration all such facts and factors, the Supreme Court on 23rd march 2020 declared that the hearings would be conducted by way of video-conferencing as a measure to restrict the human interface and further escalation and spread of the deadly virus.
Another important characteristic of the breakdown of India’s criminal justice system is its overcrowded prisons, which have turned into sites vulnerable to the spread of COVID-19, the disease caused by the new coronavirus. India’s prisons have an average 114 percent occupancy rate, with the “under-trials” – people in custody awaiting investigation or trial – constituting nearly 68 percent of the prison population, as per the National Crime Records Bureau (NCRB). The Delhi High Court, while hearing a case related to the religious violence in the Indian capital in February, 2020, said, ‘prison is “primarily for punishing convicts, not for detaining undertrials”.
Therefore, it has become manifest that the virus outbreak has slowed down and, to a certain extent, paralyzed the law enforcement machinery of the state.
Measures taken up by the different Courts to address the issues
- Supreme Court of India: Exercising inherent powers under Article 141 and 142 of the Constitution of India, a full bench of the Supreme Court has, vide its order dated 23rd March 2020, extended the limitation for filing petitions/applications/suits/ appeals/all other proceedings before all Courts, Tribunals and authorities across the country w.e.f. 15th March, 2020 till further orders. The Supreme Court of India, heard a Suo moto case pertaining to lapses in care of COVID-19 patients at different hospitals in the National Capital Territory of Delhi and other States. The three-judge bench comprising Justices Ashok Bhushan, Sanjay Kishan Kaul, and M.R. Shah issued a boatload of directions to redeem the sad plight of patients and the public that needs medical care. It noted the need for continuous supervision and monitoring of government hospitals, COVID-19 dedicated hospitals, and other hospitals taking care of COVID management.
- High Court of Judicature at Allahabad: In exercise of its powers under Article 226 and 227 of the Constitution of India, vide its order dated 26th March 2020, the High Court of Allahabad has passed the following directions:
- All interim orders passed by the High Court, all the District Courts, Civil Courts, Family Courts, Labour Courts, Industrial Tribunals and all other Tribunals in the State, which have expired subsequent to 19th March, 2020 or are due to expire within a period of one month from 26th March, 2020, and was in operation up to 26th April, 2020.
- All Bail/anticipatory bail orders which are likely to expire in one month from 26th March 2020 stood extended for a period of one month.
- All eviction, dispossession or demolition orders already passed by the High Court, District or Civil Courts remained in abeyance for a period of one month.
As the criminal justice system forms the backbone of our society and is drastically lagging behind due to this pandemic. Only if it is to evolve and withstand future ill-fated events then it must adapt and embrace new technologies. Hopefully, this pandemic will carve out the necessity of fundamental change that this system is in dire need of and take a turn in the way justice is meted out.
At a time when executive tyranny and majoritarianism are at an all-time high in the country amid a decline of almost all independent institutions, the judiciary remains citizens’ last hope. The Judiciary is an “essential service”, even if the government’s March 24 order pretends otherwise as the government later on after unlocking the country has already said that ‘one must need to learn to live with the virus’.
The author would like to conclude by saying, with the failing of the present Criminal Justice System of India, the only resort available will be to induct technology in its day-to-day affairs and serve the society with prompt delivery of justice. It is time that the judiciary too learns to live with the virus and try to incorporate some technological driven functioning in its daily affairs.
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